Scales v Bunnings Group Limited
[2021] NSWPIC 8
•5 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Scales v Bunnings Group Limited [2021] NSWPIC 8 |
| APPLICANT: | Ronald Scales |
| RESPONDENT: | Bunnings Group Limited |
| MEMBER: | Catherine McDonald |
| DATE OF DECISION: | 5 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- section 60 expenses for surgery for frozen shoulder as a result of an injury; no resolution in expected time frame and treating doctor recommended surgery; insurer declined payment because its independent medical examiner said that the condition should resolve; Held- surgery reasonably necessary; Diab v NRMA and Murphy v Allity management discussed; award for applicant for section 60 expenses of and incidental to surgery. |
| DETERMINATIONS MADE: | 1. Pursuant to s 60 of the Workers Compensation Act 1987, the respondent is to pay the costs of and incidental to the surgery proposed by A/Prof Haber in his report dated 9 July 2020. |
STATEMENT OF REASONS
BACKGROUND
Ronald Scales is employed by Bunnings Group Limited (Bunnings) as a section manager. On 2 December 2012 he was struck by a motor vehicle at his employer’s premises and suffered an injury to his right shoulder and the right side of his neck.
The only issue in the proceedings is whether an arthroscopic capsular release operation proposed by A/Prof M Haber is reasonably necessary medical treatment as a result of the injury.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for telephone conference on 8 January 2021 when Mr Horan of counsel appeared for Mr Scales and Ms Nguyen appeared for Bunnings. The Application to Resolve a Dispute (ARD) was amended by consent to nominate 2 December 2019 as the date of injury.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Because of the narrow issue, I proposed that the matter proceed by way of written submissions and the parties have agreed to the determination of the matter without a conference or formal hearing.
EVIDENCE
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) ARD and attached documents, and
(b) Reply, including CCTV footage of the injury.
Mr Scales said in his statement dated 22 September 2020 that he was struck on his upper right arm. He reported the injury but continued his shift. He continued to work on the following days and saw a physiotherapist at Bioscan, Bunnings preferred provider. After about four sessions of physiotherapy, his neck pain improved but his shoulder pain did not and he saw his general practitioner, Dr G Albert.
Dr Albert referred Mr Scales to A/Prof Haber who prescribed the treatment summarised below. A/Prof Haber then proposed a shoulder arthroscopy and capsular release.
Liability for surgery was declined on the basis of a report from Dr S Rimmer in August 2020.
Mr Scales said that he continues to suffer significant pain and his shoulder has not improved. He is taking pain-killing medication and, though he continues to work, he is restricted in what he can do.
Medical evidence
An MRI scan reported on by Dr A van den Heever on 21 January 2020 showed moderate acromio-clavicular joint arthorosis, mild gleno-humeral joint arthrosis and subscapularis tendinosis. It did not show a rotator cuff tear but showed anterior labral fraying and biceps labral junction fraying.
On 31 March 2020, Mr Scales saw A/Prof Haber who reviewed the MRI scan. On examination, A/Prof Haber noted that tenderness was localised to the sub-acromial region and that forward elevation and internal rotation were reduced. A/Prof Haber undertook an ultrasound which showed that Mr Scales’ rotator cuff was intact, there was a 4 mm region of calcification within the subscapularis tendon and significant thickening of the subacromial bursa. A/Prof Haber performed an impingement test with local anaesthetic and steroids, saying that relief of pain is suggestive of subacromial impingement syndrome.
On 16 April 2020 A/Prof Haber undertook a telehealth consultation and noted that the injection had been of some benefit and proposed a glenohumeral joint cortisone injection which was carried out on 21 April 2020. A/Prof Haber said that if Mr Scales obtained significant relief, it was highly suggestive of capsulitis or synovitis.
A/Prof Haber told the insurer on 24 April 2020 that the specific diagnosis was under investigation but that he suspected Mr Scales was developing post traumatic capsulitis. He said that the result of the injection would assist with that diagnosis.
On 5 May 2020 A/Prof Haber noted that the injections were of no significant benefit. He requested an MRI and recommended a consultation with an occupational physician, Dr L Crowle.
The MRI scan report is dated 5 May 2020. It showed a small amount of fluid in the bicipital tendon sheath and mild thickening of the glenoid attachment of the inferior axillary joint recess can be seen in capsulitis. It showed a subacute to chronic superior labral tear and an old partial thickness undersurface articular sided tear involving the leading edge of the supraspinatus.
A/Prof Haber saw Mr Scales and explained the natural history of a possible capsulitis – that the increasing pain plateaus at six months then starts to subside so that after a few months the pain will be manageable and the shoulder will start to improve. The process may take up to three years and in some cases there is persistent stiffness. A/Prof Haber said that if progress is slow, a manipulation under anaesthetic with arthroscopic capsular release may be required. He recommended a gentle stretching program.
On 9 July 2020 A/Prof Haber recommended surgery because of persistent symptoms of severe pain and stiffness for over eight months with no evidence of resolution. He said:
“I have recommended the procedure of arthroscopic capsular and subacromial release.
If a rotator cuff tear is identified we will perform a rotator cuff repair.Approval is required. I feel the current diagnosis is consistent with the reported mechanism. From the history obtained I do believe the patient's employment is a substantial contributing factor to the current condition and need for surgery. It is hoped surgery will alleviate the patient's symptoms and assist in them returning to pre-injury duties. I believe this procedure is reasonable and necessary and is the most appropriate treatment.
…
For the first few weeks Ronald would be fit for essentially clerical duties.
It is hoped 6 weeks after surgery, Ronald may commence manual duties using the operated arm and made [sic] progress with a return to work program as comfort allows.”A/Prof Haber repeated that opinion in a report dated 22 July 2020 after he had seen Dr Rimmer’s first report. He agreed with Dr Rimmer’s diagnosis of adhesive capsulitis.
Mr Scales’ solicitors arranged for him to see Dr J Herald, orthopaedic surgeon, who reported on 28 August 2020. Dr Herald obtained a history of a fractured shoulder blade in 1992 which recovered and an injury to his neck whilst working in the mines which resulted in a few days off work. Dr Herald undertook an examination and reviewed the MRI scans. He diagnosed a rotator cuff tear with adhesive capsulitis and said that the proposed surgery was reasonable and necessary.
Dr Herald prepared a further report dated 2 November 2020. He said:
“The proposed surgical treatment in the form of a shoulder arthroscopy, capsular release, rotator cuff debridement or repair is necessary and labral debridement or repair or biceps tenodesis would be the purpose of the proposed surgical treatment. This would help treat the conditions found on the MRI scan including rotator cuff tear, the SLAP lesion and the adhesive capsulitis.”
Dr Herald said that there were two injuries shown on the MRI being the rotator cuff tear and SLAP lesion which may have triggered the frozen shoulder. He said that despite the report, there was no evidence that either of the conditions is old. He considered that surgery is warranted because Mr Scales continued to suffer severe pain one year after the injury and because the pain of adhesive capsulitis should have resolved in about six months. Dr Herald noted that the MRI scan was taken about six months after the injury which would fit within a subacute period. Dr Herald noted that the adhesive capsulitis had not resolved in the 12 to 18 month time frame expected by Dr Rimmer because one year after the injury, Mr Scales had not progressed beyond the first stage. He said that after the first six months pain reduces and stiffness becomes the predominant factor.
The insurer’s response
Bunnings’ insurer arranged for Mr Scales to see Dr S Rimmer, orthopaedic surgeon, who reported on 11 May 2020. Dr Rimmer reviewed the first MRI scan and diagnosed right frozen shoulder/adhesive capsulitis. In brief answers to a series of questions, Dr Rimmer said that the injury was consistent with the mechanism and that the condition had not resolved. He said that the natural history of frozen shoulder was a gradual resolution over 12 to 18 months and that the only treatment required was analgesia.
On 2 June 2020, Dr Rimmer reviewed the CCTV footage of the incident. Dr Rimmer said that it showed a reversing vehicle strike Mr Scales’ shoulder, consistent with the history provided. He said that the footage confirmed that work was a substantial contributing factor to the injury and that in his clinical experience, even the most innocuous of events can lead to the development of frozen shoulder.
Bunnings’ insurer issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 30 July 2020. The insurer confirmed that liability was accepted for the injury but said that A/Prof Haber’s “justification was insufficient and time frames to return to work as comfort allows.” It notes that the report did not say that the surgery was reasonably necessary.
The insurer noted that it had referred Mr Scales to Dr S Rimmer and summarised the opinion in his first report. The insurer said that it had requested a supplementary report.
Dr Rimmer’s supplementary report is dated 4 August 2020. He was asked if surgery was reasonably necessary and said that it was not reasonable and necessary because of the natural history of gradual resolution over time. He said that the report of the May 2020 MRI “clearly” stated a chronic or old partial thickness tear which in general terms did not need surgical intervention.
On 17 August 2020, Bunnings’ insurer issued another s 78 notice. It disputed the claim that based on three reports from Dr Rimmer. Dr Rimmer considered that surgery was not required, “an” MRI scan showed an old tear which “in general terms” did not require surgical intervention.
The insurer maintained its view in a notice dated 17 September 2020 noting that Dr Herald’s report provided a history of past injuries. It suggested that Dr Herald “had not provided any evidence to challenge the opinion of Dr Rimmer” and did not supply any reasoning to explain why surgery was reasonably necessary “despite the fact that your frozen shoulder is expected to gradually resolve over time without surgical intervention.”
A further request for a review was declined on 30 November 2020. The insurer repeated its previous reasons and said that Dr Herald had not addressed the opinions of Dr Rimmer and A/Prof Haber adequately. (no end quote) It maintained its decision.
The Reply contained a further supplementary report from Dr Rimmer dated 7 December 2020, commenting on Dr Herald’s first report. He said:
“I have read Dr Herald’s report, and I am unaware of whether he has seen the CCTV vision which shows an extremely minor bump to the anterior aspect of Mr Scales right shoulder. In general terms, this does not cause a partial-thickness tear of the supraspinatus tendon or a degenerative labral tear, i.e. they were pre-existing. As I have highlighted, the mechanism of injury is consistent with the onset of frozen
shoulder, which is the case today.Therefore, the fundamental difference between my opinion and that of Dr Herald is that the natural history of frozen shoulder (adhesive capsulitis) is the gradual resolution over 12–18 months. As he has quite rightly pointed out, it is 12 months, however I have seen cases resolve within the time period which we are still well within.”
Dr Rimmer said that viewing the CCTV footage would show Dr Herald that the trivial injury would not have caused a labral tear or a partial-thickness tear of the supraspinatus tendon but would have caused the frozen shoulder.
SUBMISSIONS
Mr Horan prepared submissions on behalf of Mr Scales. Essentially, Mr Horan submitted that I would prefer the evidence of A/Prof Haber and Dr Herald to that of Dr Rimmer because Dr Rimmer’s opinion is based on the natural history of frozen shoulder rather than Mr Scales’ subjective circumstances.
Mr Adhikary of counsel prepared submissions on behalf of Bunnings. The substantive part is very short. He said that Bunnings relied on Dr Rimmer’s report and that Mr Scales was still within the time frame stipulated to achieve gradual resolution. The fact that 12 months had elapsed did not detract from his opinion so that it was “not appropriate” for Mr Scales to undergo surgery. This was particularly so when A/Prof Haber said that the time frame for recovery was variable and it may be 18 months to three years before full motion is recovered.
Mr Horan did not seek to file submissions in reply.
FINDINGS AND REASONS
Section 60 of the Workers Compensation Act 1987 (the 1987 Act) requires employers to pay the cost of reasonably necessary medical treatment required as a result of an injury.
Roche DP considered the meaning of reasonably necessary in Diab v NRMA Ltd[1] (Diab):
[1] [2014] NSWWCCPD 72.
“… ‘reasonably necessary’ is a composite phrase in which necessity is qualified so that it must be a reasonable necessity (Giles JA (Campbell JA agreeing) in ING Bank (Australia) Ltd v O’Shea[2010] NSWCA 71 at [48] (O’Shea)). The Court, Bathurst CJ, Beazley and Meagher JJA, followed this approach in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd[2012] NSWCA 445 at [113] (Moorebank).
Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. ...
In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose[2] (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd[1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia[2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”
[2] Referring to Rose v Health Commission NSW [1986] NSWCC 2; (1986) NSWCCR 32.
The dispute notices prepared by Bunnings’ insurer convey a marked reluctance to engage with the reports provided and a failure to engage with the language of the legislation.
The first notice accused A/Prof Haber of not saying that the surgery was reasonably necessary where he had clearly said that it was appropriate and “reasonable and necessary”. Similarly, focussing on A/Prof Haber’s statement that Mr Scales could return to work “as comfort allows” was taken out of the context of a careful description of his likely progress which included a time frame of a return to clerical duties then a gradual resumption of manual duties six weeks after surgery.
The determination of whether medical treatment is reasonably necessary depends on a consideration of the evidence and not on the inclusion of any particular words in the report recommending treatment. As Roche DP said in Diab, reasonable and necessary is a more demanding test. Treatment which is reasonable and necessary will fulfil the requirement of being reasonably necessary.
I am satisfied that the surgery proposed is reasonably necessary. In his report dated 14 May 2020 A/Prof Haber said that he had explained the natural course of frozen shoulder to Mr Scales, particularly that pain usually plateaus at six months then starts to subside. On 9 July 2020 A/Prof Haber recommended surgery after Mr Scales’ symptoms had persisted for eight months. He noted that he still had severe pain and stiffness and, most importantly, no evidence of resolution. A/Prof Haber had considered the usual course of the condition and explained that Mr Scales’ condition did not fit that usual course.
Dr Herald agreed that Mr Scales’ condition had not progressed in the way that might usually be expected, that he had not progressed beyond the first stage and that the second stage usually occurs about six months after injury. At the time of Dr Herald’s examination in late August 2020, it was nearly nine months since the injury. The most recent evidence is Mr Scales’ statement dated 22 September 2020 in which he said that there has been no improvement.
Dr Rimmer saw Mr Scales on one occasion in May 2020. This first report is brief. Through a series of short supplementary reports he maintained that the natural course of adhesive capsulitis is gradual resolution over 12 to 18 months. He did not see Mr Scales again. His reports do not engage with the opinions of A/Prof Haber and Dr Herald that resolution occurs in stages and that Mr Scales has not passed the first stage, remaining in severe pain.
Dr Rimmer was only given the report of the MRI scan undertaken in May 2020 and there is no evidence that he has seen the films. Other than to suggest that the CCTV did not show an injury significant enough to cause a tear, he did not engage with Dr Herald’s comment that the “old” tear observed in May 2020 could have been suffered in December 2019 if it was no longer acute. Dr Rimmer’s comments with respect to the scan and the presence of tears are not persuasive.
Though I have seen the CCTV footage, I am not able to comment on the severity of the injury other than that it caused Mr Scales to jerk and stumble and that the footage ended immediately after that. In any event, all of the doctors agree that the incident was responsible for the development of frozen shoulder and it is that condition for which A/Prof Haber has recommended surgery.
A/Prof Haber said that he would review Mr Scales’ rotator cuff and perform a repair only if a tear was identified.
Even if a rotator cuff tear was pre-existing, that does not mean that the surgery is reasonably necessary medical treatment as a result of the injury. It is not necessary that the injury be the only cause of the need for treatment for that treatment to be reasonably necessary. In Murphy v Allity Management Services Pty Ltd[3], Roche DP said:
“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd(1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters(1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd(1979) 53 WCR 167; ACQ Pty Ltd v Cook[2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman[2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd(1996) 12 NSWCCR 716).”
[3] [2015] NSWWCCPD 49.
I prefer the opinions of A/Prof Haber and Dr Herald to that of Dr Rimmer.
I am satisfied that the treatment proposed by A/Prof Haber is reasonably necessary medical treatment as a result of the injury on 2 December 2019.
Bunnings is ordered to pay the costs of and incidental to the surgery proposed by A/Prof Haber pursuant to s 60.
Catherine McDonald
MEMBER
5 March 2021
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